Continuances force inmates to wait years for trial

Tracy Dame wants his day in court. The 39-year-old has been in the Sedgwick County Jail since June 27, awaiting trial on a charge of aggravated indecent liberties with a 13-year-old girl.

This Sedgwick County courtroom may be empty on some days this summer. Kansas Supreme Court Chief Justice Lawton Nuss renewed his plea for legislators to increase the judicial branch budget for 2015 to avoid shortfalls that could result in employee furloughs and closing of courthouses.
The Wichita Eagle

The 39-year-old has been in the Sedgwick County Jail since June 27, awaiting trial on a charge of aggravated indecent liberties with a 13-year-old girl.

Lawyers have asked for, and received, 14 continuances since Dame waived his preliminary hearing Aug. 30 and was arraigned. His trial is set for April 1 – the 10th time it’s been on the calendar.

Most of the requests for more time to try the case came from his lawyer, Brad Sylvester, a trial attorney in the Sedgwick County Conflict Office. Sylvester and the other four lawyers in that office handle cases that public defenders can’t take because of a conflict of interest. Sylvester has asked for 11 continuances throughout Dame’s case, records show, and the state asked for three continuances.

The severity of Dame’s case has played a role in the number of continuances, Sylvester said.

“If he gets convicted, he gets life in prison,” he said, explaining that he will not rush a case that serious.

“How many times can this be continued?” Cynthia Dame said. “Are we looking possibly at years for this?”

The answer is potentially yes – and at a great cost to taxpayers. It costs about $68 a day to house someone in the downtown Wichita jail. One inmate has been in jail since 2009 and is still awaiting trial. Three other inmates awaiting trial have been in jail since 2010.

Undersheriff Danny Bardezbain said in an e-mail that continuances “definitely have an impact on the detention facility and not just on the overcrowding.”

“Taxpayers are picking up the tab” for inmates with medical or mental health issues, he said.

At the request of The Eagle, officials in the Sedgwick County Sheriff’s Office on Thursday took a look at the 50 inmates in jail the longest amount of time.

Maj. Glenn Kurtz disregarded inmates who were facing federal charges and those already convicted. That left 22 inmates facing trial with 463 continuances between them, an average of about 21. In 2010, the same report found those inmates in jail the longest had an average of 17 continuances between them.

Public defenders, who are assigned to defendants who can’t afford to pay for a lawyer, say their caseloads are high and they ask for continuances to ensure their client gets the best defense possible.

Continuances are common

Continuances are, in many ways, a necessary evil of the court system. Lawyers request them for a variety of reasons including scheduling conflicts, defense attorney workloads and needing time to find a witness or work out a plea agreement.

Sylvester said one reason Dame is still in jail is that a judge denied releasing him on his own recognizance even though the prosecutor’s office had agreed to it. The severity of the case also adds to the number of continuances.

Sylvester also said that he was out of the office from mid-November through January because of a family emergency.

In an interview Thursday in jail, Dame claimed he was innocent and said he turned down a plea bargain that would have put him on probation for three years without any prison time. He said he refused the deal because he would have had to register as a sex offender.

Dame said he is eager to go to court because he wants the case behind him.

He hasn’t faced a judge, he said, since his preliminary hearing.

Trial docket reduced

Although the average number of continuances among those in jail for the longest period of time has increased, Sedgwick County District Court Chief Judge James Fleetwood noted other signs that the court system is running more smoothly and faster.

At any given time they have about 900 cases set for trial, he said.

“We have made a significance decrease in the number of cases on the regular trial docket,” he said. “We’ve reduced the trial docket from 1,200 cases to 900. Over the next year we expect to get that down significantly more.”

A trial docket is a calendar of cases that have been set for trial. That means the defendants already have appeared in court for their first appearance and preliminary hearing and have been arraigned.

Judges, prosecutors and public defenders are working to identify “those cases that can be disposed of quicker. We also are moving up the older cases. That way we as a group and as a court, we’re putting pressure on the entire docket on both ends,” Fleetwood said.

Still, there are people such as Dame who say continuances have plagued them.

“There may be an attorney that is perhaps not controlling their calendar as closely as they might,” Fleetwood said. “What the court focuses on is its own calendar. We’re encouraging faster disposition of cases, and I think we’re achieving that by reducing the trial docket from 1,200 to 900.”

Fleetwood also noted that continuances before a trial – those for motion hearings, for example – do not delay a trial date.

J’Mario Roberts, who is facing drug-related charges, filed a handwritten plea for a new lawyer earlier this month. He has been in jail since October.

He said his public defender continued his trial set for Feb. 25, disregarding his wishes “even after defendant enunciated very clearly and concisely.”

Prosecutors filed the case against Roberts in August. Since then, Roberts’ lawyer has requested, and received, at least 20 continuances, records show.

Roberts alleges his constitutional right to a speedy trial was violated. But that’s not the case because of who asked for the continuances.

“Speedy trial is 90 days after arraignment, which is done at the preliminary hearing. Any defense continuances do not count in the 90 days,” explained deputy public defender Mark Orr.

Prosecutors must be ready to take a case to trial within 90 days, but the defendant’s lawyer can request multiple continuances.

Timothy Reed, accused of rape, aggravated indecent liberties with a child between 14 and 16 years old, criminal sodomy and other crimes, has been in jail since May.

He filed a handwritten motion to fire his lawyer from the public defender’s office, saying he told her “he didn’t wish to ask for any continuances in this case. Since she has done this repeatedly against the defendant’s wishes, she has done nothing but delay the defendant’s speedy trial right time.”

A judge denied his motion in September.

Fleetwood said caseloads among public defenders are high.

“I think anybody who went through their office would recognize that they are understaffed,” Fleetwood said. “If the court were to force those, then we put them into the position of facing a subsequent claim of ineffective assistance of counsel. There’s only so much pressure we can put on the public defender to try so many cases a week.”

Later, he said, “I am not here to justify the acts of individual attorneys. We are increasing the effort to get cases disposed of. As we decrease the trial docket, then these other matters, like issues of continuances, get taken care of also.”

Orr said there are 23.5 lawyers in the Sedgwick County public defenders office. They are juggling about 1,100 to 1,200 felony cases, Orr said.

“The problem we have is caseloads. Our policy is if we have more than one trial scheduled in a week, the oldest in custody goes first,” Orr said. “We try to get people to trial as quickly as we can, but it’s not only caseloads. Sometimes we don’t have the discovery from the district attorney’s office. Sometimes we’ve hired experts and are waiting for their reports. We could be still investigating. We only have one investigator for the 23.5 attorneys. We used to have three.”

Orr said some defendants, unlike Dame, Roberts and Reed, are happy for those cases to be continued.

“A lot of them think the longer it takes, memories will fade and witnesses will disappear,” Orr said.

Orr said defense lawyers request more continuances than prosecutors because “the state doesn’t file the case until they’re ready to go. We start a little bit behind. We don’t start the case until they’ve filed.”

Having more lawyers would help, he said, “but with the state’s current budget, I don’t think we’re specifically asking for any right now because it’s not going to happen.”